Aggravated Punishment on Parricide

[25-2(A) KCCR 82, 2011Hun-Ba267, July 25, 2013]

Questions Presented

Whether the part ‘a person who kills one's own lineal ascendant’ of Article 250 Section 2 of the Criminal Act (hereinafter, the “Provision”) which prescribes aggravated punishment for a person who kills one's (legal) lineal ascendant compared to punishment for general murder violates the principle of equality (negative)

Summary of the Decision

From the Joseon Dynasty to the present, parricide (killing one's own lineal ascendant) has been punished in an aggravated way under which lies Confucian values and traditional ideas that emphasize filial duty. The depravity of parricide also justifies intensive social condemnation, compared to general murder. Furthermore, the Provision corrected the issue of disproportion between crime and responsibility in sentencing by revising its statutory punishment from ‘death or life imprisonment’ to ‘death, life imprisonment or imprisonment for seven years or more.’ Therefore, the Provision does not violate the principle of equality that requires balance in criminal punishments.

Dissenting Opinion of Justice Lee Jin-Sung and Justice Seo Ki-Seog

The Provision imposes aggravated punishment on parricide (killing one's own lineal ascendant) only based on legal relationship, without considering any circumstance such as custody, caring or attachment. In contrast, a person is punished by general murder (Article 250 Section 1 of the Criminal Act) if he/she kills a spouse, lineal descendant, or a special benefactor not legally related. The punishment would be even mitigated if a lineal ascendant kills his/her infant for disgrace or

concealment (Article 251 of the Criminal Act). As such the Provision is not in consonance to democratic family relationship protected by the Constitution. The flat increase of minimum punishment by rule, without considering the intent of crime, makes reasonable determination of sentencing difficult. Such regulation is hard to find reference from the perspective of comparative law. Therefore, discrimination by the Provision cannot be reasonably justified, thus violating the principle of equality.

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Provision at Issue

The part ‘a person who kills one's own lineal ascendant’ of Article 250 Section 2 of the Criminal Act (revised by Act No. 5057 on December 29, 1995)

Party

Petitioner

Son O-Wook

Attorney in Charge: Chung Ihn-Bong

Underlying Case

2011Do9250, Supreme Court (Parricide)

Holding

The part ‘a person who kills one's own lineal ascendant’ of Article 250 Section 2 of the Criminal Act (revised by Act No. 5057 on December 29, 1995) does not violate the Constitution.

Reasoning

I. Introduction of the Case and Subject Matter of Review

A. Introduction of the Case

(1) Complainant, the defendant in the underlying case, was charged with murdering his father. According to the indictment, the defendant had harbored grievance toward his father who under the influence of alcohol frequently assaulted his mother. On January 24, 2011, the defendant was involved in a tussle when he tried to keep his father fromassaulting his mother. Shortly after the complainant attempted reconciliationwith his father, his father (victim) assaulted the complainant and during the tussle that ensued he killed his father. The complainant was sentenced to 10 years in imprisonment by the trial court (Seoul Central District Court 2011GoHab91) and sentenced to 7 years in imprisonment by the appeal court (Seoul High Court 2011No1052).

(2) The complainant appealed the case to the Supreme Court (Supreme Court 2011Do9250). While the appeal was pending, the complainant filed a motion to request constitutional review on Article 250 Section 2 of the Criminal Act. When the motion was denied on October 5, 2011, the petitioner filed this constitutional complaint on October 18, 2011.

B. Subject Matter of Review

The complainant requested constitutional review on the entire Article 250 Section 2 of the Criminal Act, but the subject matter of review of this case should be limited to the constitutionality of the part ‘a person who kills one's own lineal ascendant’ of Article 250 Section 2 of the Criminal Act (revised as Act No. 5057 on December 29, 1995) (hereinafter, the “Provision”) that is applicable in the underlying case.

The Provision and relevant provisions are stated as follows:

Provision at Issue

Criminal Act (revised as Act No. 5057 on December 29, 1995)

Article 250 (Murder, Killing Ascendant)

(2)A person who kills one's ownor anylineal ascendantof one's spouseshall be punished by death, imprisonment for life or for not less seven years.

Related Provisions

Criminal Act (enacted as Act No. 293 on September 18, 1953)

Article 250 (Murder, Killing Ascendant)

(1) A person who kills another shall be punished by death, or imprisonment for life or for at least five years

Criminal Act (enacted as Act No. 293 on September 18, 1953 but before revised as Act No. 5057 on December 29, 1995)

Article 250 (Murder, Killing Ascendant)

(2) A person who kills one's own or any lineal ascendant of one's spouse shall be punished by death or imprisonment for life.

II. Arguments of the Complainant

(intentionally omitted)

III. Judgment

A. Legislative History and Purpose of the Provision

(1) In the Joseon Dynasty when traditional Confucian values emphasizingfilial duty were dominant, parricide was classified into one of the ten worst crimes punished by decapitation or dismemberment. The Criminal Code of the Korean Empire, promulgated on April 29, 1905, also

punished the murder of lineal ascendants with death by hanging.

Article 200 of the former Criminal Act of Japan applied during the period of Japanese colonial rule stipulated that murder of one's own or any lineal ascendant of one's spouse be punished by death or life imprisonment.

Article 250 Section 2 of the Criminal Act of Korea (parricide provision), which was enacted in 1953, succeeded the above provision of the former Criminal Act of Japan and was maintained for more than 40 years. During the third revision of the Criminal Act in 1995, it was argued whether to delete the parricide provision or not. The parricide provision was not repealed under the considerations that aggravated condemnation of immoral crimes against a lineal ascendant is part of our traditional legal culture. Also considered was the fact that abolishing the parricide provision only for the reason of its excessive punishment, while maintaining other aggravated punishment on crimes against a lineal ascendant is against the principle of criminal justice. Nonetheless, its statutory punishment was altered from ‘death or imprisonment for life’ to ‘death, imprisonment for life, or imprisonment for not less 7 years’ by adding ‘imprisonment for not less 7 years’, accepting criticism that pointed out its excessive punishment.

(2) From the Joseon Dynasty to the present, parricide (killing one's own lineal ascendant) has been punished in an aggravated way under which lies Confucian values and traditional ideas that emphasize filial duty. Besides, the Criminal Act has other provisions that impose additional punishment on crimes against ascendants, including assault against ascendants, battery against ascendants, and abandonment of ascendants. These aggravated punishment provisions are justified by the intensive social condemnation of the immorality of the perpetrator when the victims of crimes are legally related as lineal ascendants (see 14-1 KCCR 159, 2000Hun-Ba53, March 28, 2002).

B. Principle of Equality

(1) Complainant argues that the Provision violates Article 11 Section 2 of the Constitution by creating a special social class. Nevertheless, it is obvious that the Provision does not create a social position class such as slavery, aristocracy, and nobles and commoners, implied by ‘special social class’ of Article 11 Section 2 of the Constitution (23-1(A) KCCR 276, 312-313, 2008Hun-Ba141 etc., March 31, 2011). Therefore, this argument should be construed as to whether the Provision discriminates against lineal descendants in favor of lineal ascendants, thus violating the principle of equality under Article 11 Section 1 of the Constitution.

(2) The principle of equality under Article 11 Section 1 of the Constitution represents relative equality (equality before law) that prohibits any unreasonable discrimination in enacting legislation and applying laws. This means that discrimination based on reasonable ground is not against the principle of equality (see13-2 KCCR 678, 690, 2001Hun-Ba4, November 29, 2001). Thus the Provision would not violate the principle of equality if the discrimination against lineal descendants is deemed reasonable.

(3) The legislature is invested with broad discretion on the punishment of crimes. The legislature determines the types and degree of criminal punishment under comprehensive consideration of not only the nature of the crime and benefit of the law, but other various elements such as the culture and history of our society, circumstances surrounding the enactment, values and legal consciousness of the citizens, and criminal policy issues, etc. Therefore, statutory punishment of a crime should not be deemed to violate the Constitution unless it clearly violates the principle of equality or the principle of proportionality of the Constitution. This may be determined by whether it loses the balance in the criminal punishment system for its excessive cruelty compared to the nature of the crime and ensuing responsibility or by exceeding the

constitutional limit in achieving its own purpose and function (4 KCCR 225, 229, 90Hun-Ba24, April 28, 1992; 63 KCCG 1162, 2001Hun-Ba4, November 29, 2001).

(4) Parricide has been perceived as an immoral crime that is againstgeneral social order, moral principles, as well as humanity. Its immoralityjustifies the intensive social condemnation of parricide compared to general murder. Even if severe punishment on parricide aimed at restraining crimes of depravity and immorality ends up providing strong protection for lineal ascendants, this is merely reflective benefit and not necessarily unreasonable. Rather, it may be reasonable under the current moral values.

Descendants’ respect and love for ascendants are core values constituting essential elements of our social morals, rather than a cultural heritage of the feudal family system. It is especially emphasized in our nation that has succeeded and developed traditional cultures based on Confucian ideas. The Provision does not violate the principle of equality of Article 11 Section 1 of the Constitution as the discrimination has reasonable grounds, considering the legitimacy of its legislative purpose and appropriateness of means, which are reasons of aggravated punishment and the appropriateness of its degree (see14-1 KCCR 159, 164, 2000Hun-Ba53, March 28, 2002).

(5) While aggravated punishment for depravity of the crime in itself has reasonable grounds, if the statutory punishment is too severe for reasonable determination of sentencing in exceptional cases where immorality is denied or relatively minor, such reasonable grounds are lost.

Nonetheless, the statutory punishment of the Provision has been altered from ‘death or imprisonment for life’ to ‘death, imprisonment for life or not less 7 years’ by the revision of 1995. Considering that differences between the minimum statutory punishment of the Provision and that of general murder which is ‘imprisonment for more than 5 years’ have been

minimized, the issue previously raised of disproportion in sentencing has been resolved. Also, the revision has enabled appropriate punishment according to responsibility by the judge's mitigation of sentencing in cases where liability is relatively minor considering criminal intention or aspect of action.

(6) Accordingly, the Provision provides aggravated punishment for immoral action that should be intensively condemned among several types of murder. The statutory punishment is neither excessively severe compared to the nature of crime and ensuing responsibility nor arbitrary legislation losing the balance of criminal punishment. Therefore, the Provision is not against the principle of equality.

IV. Conclusion

Therefore, we hold the Provision not in violation of the Constitution in a unanimous opinion of participating Justices, except the dissenting opinion of Justice Lee Jin-Sung and Justice Seo Ki-Seog in chapter V.

V. Dissenting Opinion of Justice Lee Jin-Sung and Justice Seo Ki-Seog

We are of opinion that the Provision violates the principle of equality, and thereby unconstitutional for the following reasons:

A. The Provision provides aggravated punishment for killing his/her own or spouse’ lineal ascendants which is discriminatory treatment compared to killing other legal relations, including lineal descendants or spouse, or killing a person who is not legally related.

The legislative history of the Provision implies that it is inherited from ancient times when law and morals were not separated and the worst ten crimes of Confucian ideas were punished most severely. Confucianismdeveloped through Joseon Dynasty to be the ruling principles maintaining

feudal orders based on the caste system. It also confirms the authority and control of sovereign over subject, father over children, husband over wife, and men over women.

On reviewing the regulations, the act of killing one's spouse who should be supported and cooperated with, or lineal descendants who should be cared for and reared, or special benefactors not legally related but should be respected are all punished by general murder (Article 250 Section 1 of the Criminal Act). The punishment would be even mitigated if a lineal ascendant kills his/her infant for disgrace or concealment. In contrast, the Provision imposes aggravated punishment on parricide (killing one's own lineal ascendant) only based on legal relationship, without considering any circumstance such as custody, caring or attachment.

Accordingly, the Provision is based on the feudal ethics code, implying the intent of discrimination is to maintain authoritarian and paternalistic family orders that assume controlling relationship between lineal ascendants and descendants.

Article 36 Section 1 of the Constitution states that “Marriage and family life shall be entered into and sustained on the basis of individual dignity and equality of the sexes, and the State shall do everything in its power to achieve that goal.” Human dignity and free expression of personality constitute the core values of the Constitution and democratic orders constitute the basis of constitutional order. This affects family life relationship which is a foundation as well as an element of social relationship or national relationship. If constitutional values and orders are not attained in the family life relationship it would be difficult to realize it altogether. The family system protected by the Constitution is based on a democratic family relationship that respects and treats every family member equally as an individual with dignity. Therefore, the discrimination is not in consonance to democratic family system

protected by the Constitution.

Therefore, the purpose of discrimination against a person who killed his/her lineal ascendants under the Provision is not legitimate in protecting the basic morals of society to maintain free and peaceful community life as expressed in the majority opinion. Besides, it is hardly the appropriate benefit of the law protected by criminal punishment, which is the most powerful and last resort.

B. The majority opinion also states that the revision of 1995 that inserted the imprisonment for more than 7 years for statutory punishment resolved the issue of reasonable determination of sentencing in individual cases.

But recent research on parricide reveals that crimes of parricide motivated by greed that is obviously immoral account for only 7.1% of entire cases, whereas cases motivated by mental disorder of perpetrator account for 36.9% and cases arising from abuse of the perpetrator by victim or other family members account for 26.2%. This implies that the representative types of parricide are either cases by reason of mental disorder or cases by reason of accumulated anger by habitual abuse of the perpetrator by victim or other family members. Illegality or responsibility of the latter case would not overweigh that of general murder cases. The perpetrator might be the true victim, in a sense, if the perpetrator had been abused physically or psychologically by constant domestic violence or sexual harassment for a long time or has been receiving substantial death threats. In such case, aggravated punishment against lineal descendants would be excessively severe as lineal descendants cannot choose their ascendants, while ascendants candetermine whether to have descendants or not and also have opportunitiesto educate their descendants.

While it is true that there are cases where the illegality and

responsibility of parricide are heavier than ones of general murder, there is also the possibility of the opposite. However, the Provision increases minimum statutory punishment without considering the criminal intent, etc. Because it increases punishment against parricide as well as eliminating the possibility of suspension of sentence when there are no additional statutory reduction reasons except general reduction reasons, it crosses over the boundary of reasonableness.

The Criminal Act states that several circumstances, including the relationship between perpetrator and victim, should be considered in examining a case (Article 51). Through the process of fact finding, the relationship between perpetrator and victim would be considered in aggravating or mitigating the punishment when the specific ‘sentence’ and ‘responsibility of assessment of a case’ is determined. Therefore, it would be reasonable to aggravate punishment against murder if the victim is an ascendant and the action is found to be immoral, instead of providing a separate statutory punishment from general murder.

C. Aggravated punishment of parricide of the Provision has hardly any reference from the perspective of comparative law.

Not only common law countries, including the United Kingdom and the United States, but also Switzerland, Denmark, Norway, Russia, and China do not provide aggravated punishment for parricide. Germany and Austria abolished the aggravated punishment for parricide, in 1941 and 1974, respectively. Countries that provide aggravated punishment for parricide, including France, Italy, Argentina, and Taiwan, also provide aggravated punishment for murder of descendants or spouses, as well as murder of ascendants.

Even the aggravated punishment provision of the Criminal Act of Japan, which was succeeded by the Provision, was repealed together with other aggravated punishments over crimes against ascendants in

1995, after the Supreme Court of Japan declared it unconstitutional in 1973.

D. Therefore, discrimination by the Provision cannot be reasonably justified, thus violating the principle of equality of the Constitution.

Justice Park Han-Chul (Presiding Justice), Lee Jung-Mi, Kim Yi-Su, Lee Jin-Sung, Kim Chang-Jong, Ahn Chang-Ho, Kang Il-Won, Seo Ki-Seog, Cho Yong-Ho